Zurich Reinsurance (London) v. Westville Riding

• Decision Date: 22 July 1999
• Docket Number: No. 98-594-S.,98-594-S.
• Citation: 82 F.Supp.2d 1254
• Parties: ZURICH REINSURANCE (LONDON) LIMITED, Plaintiff, v. WESTVILLE RIDING CLUB, INC. and James Curtis Remaley, Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

Page 1254

82 F.Supp.2d 1254

ZURICH REINSURANCE (LONDON) LIMITED, Plaintiff, v. WESTVILLE RIDING CLUB, INC. and James Curtis Remaley, Defendants.

No. 98-594-S.

United States District Court, E.D. Oklahoma.

July 22, 1999.

Roger N. Butler, Jr., Tulsa, OK, Robert J. Lambert, Jr., Springdale, AR, for plaintiff.

Rex Earl Starr, Stilwell, OK, Mark Green, Muskogee, OK, Timothy J. Myers, Fayetteville, AR, for defendant.

ORDER

SEAY, District Judge.

On December 21, 1998, this declaratory judgment action was instituted by Plaintiff, Zurich Reinsurance (London) Limited ("Zurich"), seeking to have this court determine rights under a commercial general liability insurance policy issued to Defendant, Westville Riding Club, Inc. ("Westville"). Zurich seeks a determination that it has no duty to defend Westville or to pay any judgment that might be rendered against Westville in favor of Defendant, James Curtis Remaley ("Remaley"), as a result of injuries sustained by Remaley on July 16, 1998, during the course of a rodeo sponsored by Westville. Jurisdiction is proper by virtue of diversity of citizenship under 28 U.S.C. § 1332(a) and venue is appropriate under 28 U.S.C. § 1391(a).

The parties agree that there are no genuine issues of fact in dispute and that this action should be submitted for disposition on the briefs and pleadings on file. In that regard, Zurich and Remaley have filed their respective motions for summary judgment seeking resolution of the legal issue of whether the policy's exclusionary endorsement, CG 21 01 11 85, entitled "EXCLUSION-ATHLETIC OR SPORTS PARTICIPANT" excludes coverage for Remaley's injuries sustained on July 16, 1998. Having reviewed the parties' submissions, this court finds Zurich is under no duty to defend Westville or pay any judgment that might be entered against Westville in favor of Remaley resulting from Remaley's injuries sustained on July 16, 1998, during the course of the rodeo sponsored by Westville.

I.

As indicated above, the facts are not in dispute. Sometime prior to July 16, 1998, Westville purchased a commercial general liability policy of insurance from Zurich containing an exclusionary endorsement, CG 21 01 11 85, entitled "EXCLUSION-ATHLETIC OR SPORTS PARTICIPANT." This exclusionary endorsement described the general liability coverage of the policy as "Rodeos, including Products and/or Completed Operations" and further provided the following exclusion from such coverage:

With respect to any operations shown in the Schedule, this insurance does not apply to "bodily injury" to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.

The parties agree that the court's interpretation of this exclusionary endorsement will determine the issue of coverage under the policy.

On July 16, 1998, a rodeo was held in Westville, Oklahoma, which was sponsored in whole or in part by Westville. Scheduled events included calf roping, bull riding, saddle bronc, bareback, barrel racing, and team roping. Another scheduled event as part the rodeo was an event called "Money the Hard Way," in which members of the general audience were given an opportunity to enter the arena and win a $50.00 cash prize by removing a string or ribbon from the horns of a bull. On July 16, 1998, Remaley was a member of the general audience and he was the only member of that audience to accept the rodeo announcer's invitation to come out of the stands and participate in "Money the Hard Way" and attempt to remove the ribbon from the bull's horns. During his participation in "Money the Hard Way," Remaley was "head butted" by the bull and he sustained bodily injuries.

II.

Zurich contends the exclusionary endorsement is plain, unambiguous, and enforceable. It is Zurich's position that Remaley, by volunteering to participate in "Money the Hard Way," became a participant in a "sports or athletic contest" sponsored by Westville within the meaning of the exclusionary endorsement. Zurich cites the decisions of other courts wherein it was held that the same or similar exclusionary language was unambiguous and provided no coverage. Ruppa v. American States Insurance Company, 91 Wis.2d 628, 284 N.W.2d 318 (1979) (injuries sustained by horse rider in cutting event at horse show); Madison County Sheriff's Posse, Inc. v. Horseman's United Association, Inc., 434 So.2d 1387 (Ala.1983) (horse rider, who had previously participated in an horse show event and was warming up his horse for a second event when he was injured when his horse tripped over a farm implement); Morrison Assurance Co. v. School Board of Suwannee County, 414 So.2d 581 (Fla.1982) (student/softball player injured while practicing for a game when she fell over wheelbarrow left near softball diamond); General Insurance Company of America v. Academy of the Visitation at St. Louis, 598 F.Supp. 1131 (E.D.Mo.1984) (student injured when she fell off balance beam while participating in mandatory school event known as "Play Day"); see also Friar v. Statutory Trustees of Kirkwood Sports Association, Inc., 959 S.W.2d 808 (Mo.Ct.App.1997) (baseball player injured during American Legion baseball game); Benton County Agricultural Society v. St. Paul Surplus Lines Insurance Company, 372 N.W.2d 383 (Minn.Ct.App.1985) (participant in three-wheel racing event at county fair).

Westville and Remaley, on the other hand, contend the language of the exclusionary endorsement is ambiguous and susceptible to more than one meaning; therefore, it should be construed against Zurich, the insurer, and in favor of coverage for Westville. In this regard, Westville and Remaley argue Remaley was not an athletic participant, but rather, was a spectator who only had incidental participation in "Money the Hard Way," an ancillary rodeo event. See Garcia v. St. Bernard Parish School Board, 576 So.2d 975 (La.1991) (cheerleader, who was injured while cheerleading at football game, not excluded from coverage since her participation was merely ancillary to the football game which was the principal event sponsored by defendant); Hockey Club of Saginaw v. Insurance Company of North America, 468 F.Supp. 101 (E.D.Mich.1979) (hockey official, who was injured when he was assaulted by a hockey player during a stoppage in play, was not an athletic participant under exclusionary language); Clermont Central Soccer v. Cincinnati Insurance Company, 82 Ohio Misc.2d 31, 676 N.E.2d 1281 (Ohio Com.Pl.1995) (soccer referee injured during soccer match not an athletic participant under exclusionary language).

Under Oklahoma law, "[t]he interpretation of an insurance contract and whether it is ambiguous is a matter of law for the court to determine and resolve." Dodson v. St. Paul Insurance Company, 812 P.2d 372, 376 (Okla.1991). The words of an insurance contract "must be considered not in a technical but in a popular sense, and they should be construed according to their plain, ordinary and accepted use in common speech, unless it affirmatively appears that a different meaning was intended." National Aviation Underwriters v. Altus Flying, 555 F.2d 778, 782 (10th Cir.1977). When an insurer relies on exclusionary language to escape liability, it has the burden of showing the insured's loss was within the scope of the exclusionary language. Wiley v. Travelers Insurance Company, 534 P.2d 1293, 1296 (Okla. 1974). Although any ambiguities or uncertainties will be resolved in favor of the insured, parties are nevertheless bound by the clear terms and provisions of the policy under contract law and an insurer's legal liability will extend no further. Evans v. Hartford Life Insurance Company, 704 F.2d 1177, 1179 (10th Cir.1983).

Other co...